Friday, August 3, 2007

The Same-Sex Marriage Debate and Indian Country

I came across the law review title "Same-Sex Marriage, Indian Tribes, and the Constitution," and couldn't resist skimming it (Matthew L.M. Fletcher, 61 U. Miami L. Rev. 53 (2006), on Westlaw here).

The author begins with a 19th century state case recognizing a polygamous marriage among Chippewa Indians because the tribe at that time recognized such marriages. He uses that as a springboard into the same-sex marriage debate and what it could possibly mean for tribal sovereignty. Pieces of the puzzle:

After Goodridge two lesbians applied for (and were denied) a marriage license on the Cherokee reservation. Their appeal was dismissed on procedural grounds.

The Navajo Nation passed a Defense of Marriage Act.

The federal DOMA explicitly mentions Indian tribes as sovereigns that don't have to recognize marriages recognized by other states and tribes.

Drafts of the proposed constitutional amendment to preserve marriage as heterosexual only do not mention Indian tribes.

Much of the article is speculative -- what if a constitutional amendment DOMA passes? what if there were a federal law requiring recognition of same-sex marriages, what if some tribes recognized such marriages? -- so speculative that I had a "so what?" reaction. But it is a good reminder that we're looking at a lot more sovereigns than 50 states, DC, and the federal government.

If someone registered as a domestic partner in Washington State is hurt on the Yakama Nation reservation and taken to a clinic there, does the partner get to visit and make decisions?

3 comments:

With regard to your last question, perhaps a preliminary question is, would they honor a legal document authorizing a particular person (such as one's same-sex partner) to visit and make medical decisions on one's behalf? If so, perhaps they would accept an argument that the domestic partnership registration is the functional equivalent of such a document?

It is an interesting question which really boils down to whether the Tribe has some specific written policy against these types of unions. The question Mary posed, I think, really looks toward clinics which are tribally controlled, as opposed to clinics and hospitals which are located on the reservation but are on non-Indian fee land and are owned by non-Indians and regulated by the State of Washington. It is also likely that clinics run by the Indian Health Service, a division of the US Dept. of Health and Human Services, would recognize these documents as binding on them. The actions of the tribally controlled clinic is more ambiguous.

Full faith and credit by tribes to state laws, and vice versa, have always been controversial, especially in the area of family law. There is often races to the courthouses; to tribal court by the Indian party, to state court by the non-Indian party. Even on the reservation, often both courts will have jurisdiction and sometimes issue conflicting orders. Most tribes do not have statutes or court rules governing full faith and credit for court orders or other legal documents created pursuant to state law. This tension can be seen in the Washington State Civil Rule 82.5 which grants full faith and credit to tribal court orders only if the state court believes the tribal court actually had jursdiction to issue the order in the first place, believes the tribal court adhered to (presumuably state standards of) due process under the Indian Civil Rights Act, and the Tribe also recognizes Washington State orders. This "I'll show you mine if you show me yours" provision shows the historic stalemate.

I don't think that the Tribe has to recognize the document. The United States Constitution does not apply to Tribes and the Indian Civil Rights Act does not create any full faith and credit requirements.

Legal hypotheticals aside, I think it is likely that the tribal clinic will honor the document. It is common practice for tribes to recognize such state issued domestic relations documents and, Navajo aside, most tribes in my experience don't have quite the same anti-homosexual sentiment as many non-Indian communities. For example, my cousin was recently elected to my tribe's tribal council and his sexual orientation wasn't even brought up in the debates and he was elected easily. This is from a tribe which is heavily converted to various types of Christianity.

I also think that in the absence of a tribal ordinance or statute one way or the other, a domestic partner could argue focefully that the legal rights of the partner should be recognized by a tribal court as a matter of tribal common law, or as protected by the due process and/or equal protection provisions of the Indian Civil Rights Act.